I had to post this release from The American Foundation for Equal Rights because it gives is another look at the lame — no worse than lame — witness testimony by the anti-gay defense. Why present a completely unqualified, evasive person on the stand as an expert? The Prop 8 forces prove yet again that they have NOTHING as David Boies blows witness David Blankenhorn away. From the release:

Star defendants’ witness David Blankenhorn today was just-barely allowed to testify after he admitted under questioning from David Boies that he does not possess a doctorate; has never taught a college or university class; has only two peer-reviewed publications, none of which are germane to this case; that his masters degree thesis, one of those two publications, focused on two Victorian cabinetmakers; and has never conducted any scientific research on same sex marriage. His cross examination by Boies will start off the morning in court.

Along with undermining his credibility, Blankenhorn’s testimony helped make the plaintiffs’ case.

“I believe homophobia is a real presence in our society,” he testified. “We would be more American on the day we permit same-sex marriage than the day before.”

Blankenhorn also testified that allowing gays and lesbians to marry would improve the wellbeing of their households and their children. Among the reasons cited for opposing marriage equality, he testified, was the specter of polygamy and polyamory.

“This is the game that they’re playing,” Ted Olson said. “They define marriage as a man and a woman. They call that the institution of marriage. So if you let a man marry a man and a woman marry a woman, it would de-institutionalize marriage. That is the same as saying you are deinstitutionalizing the right to vote when you let women have it. It’s a game. It’s a tautology. They’re saying, ‘this is the definition. You’re going to change the definition by allowing people access that don’t have it now, and that would change it so that people who currently have access won’t want it any more because it’s changed.’ This is all nonsense. They are not proving that. This is a syllogism that falls apart. The major premise, minor premise and conclusion are empty.”

The day started with Boies continuing his withering cross-examination of the defendants’ witness Prof. Kenneth Miller, who was attempting to make the case that gays and lesbians are not politically vulnerable. Miller testified, however, that Prop. 8 was passed at least in part due to “anti-gay stereotypes” and “prejudice.”

Also entered into the record today was the fact that Miller could not remember whether attorneys defending Prop. 8 provided at least 65 percent of the materials he based his research on, totalling well over 200 documents, articles, etc. Yesterday he admitted his testimony was at least in part based on materials provided to him by the defendants’ attorneys.

Today in court Blankenhorn has derailed so badly, stalling and sulking that Judge Walker admonished him for evasiveness. “You don’t want your demeanor on the stand to be negative factor in testimony,’” and Blankenhorn was seemingly about to break under the questioning, taking off his glasses to wipe his face and saying he needed to “collect his thoughts.” He also asked to consult copy of his own book to help jog his memory to name scholars he’s relied on for his writing.

Just follow the #prop8 Tweets. it’s punishing. And even better than making our case through pitiful testimony, Blankenhorn actually made statements this morning that affirm the need for marriage equality. See those below the fold.

BLANKENHORN ADMISSIONS/Prop. 8 Trial

Defendants’ witness David Blankenhorn this morning made several admissions that bolster the key points of our case:

Marriage is vitally important in American society.Prop. 8 causes grievous harm to gays and lesbians and their childrenProp. 8 perpetrates this harm for no good reason.

He admitted marriage is a “public good” and that marriage would benefit gays and lesbians, their children and society at large.

He also testified (text below as shown on screen):

· “Gay marriage would extend a wide range of the natural and practical benefits of marriage to many lesbian and gay couples and their children.”

· “Extending the right to marry to same-sex couples would probably mean that a higher proportion of gays and lesbians would choose to enter into committed relationships.”

· “Same-sex marriage would likely contribute to more stability and to longer-lasting relationships for committed same-sex couples.”

· “Same-sex marriage might lead to less sexual promiscuity among lesbians and (perhaps especially) gay men.”

· “Same-sex marriage would signify greater social acceptance of homosexual love and the worth and validity of same-sex intimate relationships.”

· “Gay marriage would be a victory for the worthy ideas of tolerance and inclusion. It would likely decrease the number of those in society who tend to be viewed warily as ‘other’ and increase the number who are accepted as part of ‘us.’ In that respect, gay marriage would be a victory for, and another key expansion of, the American idea.”

· “Gay marriage might contribute over time to a decline in anti-gay prejudice as well as, more specifically, a reduction in anti-gay hate crimes.”

· “Because marriage is a wealth-creating institution, extending marriage rights to same-sex couples would probably increase wealth accumulation and lead to higher living standards for these couples as well as help reduce welfare costs (by promoting family economic self-sufficiency) and decrease economic inequality.”

· “Extending marriage rights to same-sex couples would probably reduce the proportion of homosexuals who marry persons of the opposite sex, and thus would likely reduce instances of marital unhappiness and divorce.”

· “By increasing the number of married couples who might be interested in adoption and foster care, same-sex marriage might well lead to fewer children growing up in state institutions and more growing up in loving adoptive and foster families.”

I say just follow the testimony… even more damaging.Keep reading bits to hubby, his main comment… and that is all the DEFENSE has?PS. Remember per Kaufman on HUFFPO, http://tinyurl.com/y8dzwyoIt is Pam et als fault Brown was elected in MASS. G&L do not deserve to call their fight for Marriage Equality a Civil Right fight, because they haven't earned it.UMMMMMM…. go for it all.

Blankenhorn upset, accuses Boies of laughing at him, judge says equivalent of “there, there, calm down”.
Blankenhorn peevishly saying what he won’t answer. So Boies asking question for third time.
It is very odd to see blankenhorn being so evasive and high strung.
First rule “rule of opposites” I.e. Opposite sex.
Boies making clear the phrase is not to make light of issues, blankenhorn now mollified.
Blankenhorn really pitching a fit over the verbage “rules of the game” being attributed to him.
Boies trying to make it easier, most influential scholars names two.
While blankenhorn “composing thoughts” judge stands and stretches.
Boies asking who Blankenhorn reliying on for the rules. Needs to “compose his thought.” Talk amoungst yorselves people.
Blankenhorn now says he in fact has three foundational prerequisites for marrage. Hmmm, sounds like 3 rules to me.
Blankenhorn used phrase “rules of the game” and he is now arguing he did not use that phrasing. Blankenhorn = petulant.

Almost as if they aren’t tryingThey know they can’t win this one, so I have a feeling they are saving anything they can for a SC challenge.
They might feel like they have god on their side, but I don’t think the right leaning SC will be able to overturn this.

BWAHAHAHAHA!!!This one:CAN I GET A WITNESS?! No seriously we need a witness who won’t make us look like giant assholes. Writing Craigslist ad now. @ADFMedia #prop8
is THE BEST!!!
We already knew they were giant a**holes. Now we just have proof!

“This is the game that they’re playing,” Ted Olson said. “They define marriage as a man and a woman. They call that the institution of marriage. So if you let a man marry a man and a woman marry a woman, it would de-institutionalize marriage. That is the same as saying you are deinstitutionalizing the right to vote when you let women have it.

Expect to see that thrown back at Olson and the entire pro-same-sex-marriage side.
Yes, it exposes the intellectual and moral vacuousness of the anti-SSM side – but it should will cause any judge to recall that it took a constitutional amendment to establish a federal right to vote for women.
Expect to see that quote from Olson in the Antonin Scalia’s eventual opinion in this case – whether he’s in the majority or in lone dissent.
I’m predicting: the majority.

“This is the game that they’re playing,” Ted Olson said. “They define marriage as a man and a woman. They call that the institution of marriage. So if you let a man marry a man and a woman marry a woman, it would de-institutionalize marriage. That is the same as saying you are deinstitutionalizing the right to vote when you let women have it. It’s a game. It’s a tautology. They’re saying, ‘this is the definition. You’re going to change the definition by allowing people access that don’t have it now, and that would change it so that people who currently have access won’t want it any more because it’s changed.’ This is all nonsense. They are not proving that. This is a syllogism that falls apart. The major premise, minor premise and conclusion are empty.”

I had that same thought at first Kat.As a first reaction I thought that argument could come back to haunt him; but the whole idea of strict and intermediate scrutiny came after woman’s right to vote was passed.
That doesn’t mean that the d**khead Scalia won’t bright it up, but there is an easy counter.

Where I Scalia I might not want to mix it up with OlsenAfter all he might just take his place on the court one day! But I think all Olsen is saying is that if this argument they have doesn’t even hold up under simple logic how the hell will it stand up in court?

except thatdidn’t the constitution define voters as male until that point? if that’s true, then the only remedy was a const. amendment. however, marriage is not defined in the constitution, so no amendment needed.
but as i like to say, i’m a biologist, not a lawyer.

The Martha Coakley defenseIt’s almost as if the H8ers know that God (and 5 Supreme Court justices) are on their side and that this federal court wouldn’t be on their side even if the put up a defense.
But man, prevent defenses (hence my reference to Martha Coakley) have been known to come back to haunt you in the end. I mean, does the Prop 8 legal team want to throw this in this way?

I have often wondered…If Olsen wasn’t talked into taking this case as some twisted deal to get on the SC– as a way of absolving him of his previous actions/stances and thus easing the ire of the left-wing of the Democratic Party at such a nomination.
I guess only time will tell.

overwhelming case …… unless the Defendants can convince the Supreme Court that their attorneys threw the case. Didn’t they find any witnesses that weren’t loons? Didn’t they find any studies that weren’t fruit of the poison Cameron tree?
My guess is that the Supremes could only dodge a down-on-8 ruling on some technicality, like with the Pledge of Allegiance case. Otherwise even Scalia couldn’t fashion a decision out of the sludge the Prop 8 forces is presenting as evidence.

In all other professions in which men engage,
The Army, the Navy, the Church, and the stage,
(alas, poor Yorick!)
Professional license, if carried too far,
Your chance of promotion will certainly mar,
And I fancy this rule might apply to the Bar,
Said I to myself, said I.
– Iolanthe

“saving anything they can for a SC challenge”if i understand the system correctly, all evidence and testimony had to be offered at this trial. so, there is no such thing as saving anything for a later challenge. the appeals court and and ussc only hear arguments based on what was said at this trial, plus their constitutional and maybe procedural analysis. but they can’t spring any real expert witnesses on the court later, because that part of the process is over now.

Unfortunately, the world will never see it.Damn the SCOTUS conservative majority.
Unfortunately, Blankenhorn will be able to continue to spew his “opinions” without repurcusions save further condemning of equality.
Because it was deemed this cat and mouse show needed to be “invisible” our distractors will continue be be also.
Shameful totally. Few will even know what a dud this guy really is.

You’re rightI keep asking myself what grounds they might have for an appeal, and I’m damned if I can think of any. Basically, they’re victims of their own incompetent, dimwitted bigotry–which, unfortunately for them, isn’t appealable. If they can’t come up with some procedural technicality (which would give the Supremes a valid pretext for overturning the ruling, of course), they’re finished.

Olsen didn’t make that argument in courtIt was a comment he made outside of court when desribing the defendants position.
So, I’m not sure how a comment he made in public, but not in court could come back to bite him later….

1. Same sex marriage would meet the stated needs and desires of g and l who want to marry. In so doing it would improve the happiness and well being of many gay and lesbian and individuals, couples and family member.

DB: One is by Maggie Gallagher. Who is Maggie Gallagher?
Boise: Who is Maggie Gallagher.
DB: Writer and organizer whose principal focus for the past four or five years has been to oppose gay marriage.
Boies: Do you believe she is a scholar?
DB: I do. She is an intellectually serious person.
Boies: Do you define scholar as intellectually serious?
DB: If you are quarreling over terms…
Boies: I’m not quarreling. You use term scholar a lot. What is it?
DB: Scholar is someone who is able and equipped to engage in serious discussion with one or more bodies of evidence and make rigorous arguments with one or more bodies of evidence. Good scholars operate with integrity and try to seek the truth of the matter.
Boies: One attribute is objectivity?
DB: In the sense that one must try to deal with objectivity, yes. Maggie Gallagher has a dual role. She’s a journalist and a partisan.
Boies: Has she published any peer-reviewed articles? Which ones?
DB: I don’t have her CV here. I can’t recall them here, but she has been in peer-reviewed journals.
Boies: Which ones of her peer-reviewed articles have you relied upon?
DB: I have read thousands of articles, hers included.
Boies: Which of Maggie Gallagher’s?
DB: You are putting words in my mouth.

On an appealthe Prop 8 proponents will not be able to introduce new/additional evidence. The appellate court – be it the 9th Circuit or U.S. Supreme Court – would base it’s ruling on the legal analysis of the trial judge and the evidence entered at trial in the U.S. District Court. Deference would be given to the trial judge’s findings of fact unless blatantly wrong since he is the one who saw and heard the witnesses testify at the trial.
The only exception would be if the appellate court disagreed with some aspect of the trial decision and remanded the case back for further hearings. While remands do happen, typically, appellate courts reverse or affirm the lower court ruling.

that is true, but it can still get funnySCOTUS granted cert. to the Newdow pledge-of-allegiance/Under God case, heard out Mr. Newdow (he was there pro se) and then threw it out on the technical grounds that Mr. Newdow didn’t have custody of his minor daughter and could not then claim for her as “next best friend.”
Too bad. They could have considered it as an Establishment Clause case, made a ruling based on the Lemon test, and thus left future jurists with the Lemon Pledge Test.
And that’s what I’m worried about, that it would get to SCOTUS, who would put the whole thing in the shredder over something arcane — who knows, the Rule Against Perpetuities — or the obvious, that the Defendants’ witnesses and counsel were non compos mentis and couldn’t adequately represent the State or the Prop 8 proponents. End result: no case law, no victory or defeat for us, just a couple years’ wasted effort. No hits, no runs, no errors, and 18,000 couples left on at the end of the inning.Quod erat demonstrandum.
QED.

and that’s the pointEven if it’s the lowest-level test, rationally related to a legitimate government purpose, the Defense seems to be showing that (1) it’s a totally irrational basis and (2) a purpose of pure animus. It certainly won’t survive the Romer/Lawrence rational-basis-with-bite test. What’re the Defendants doing?

Ipse dixit.
n. An unsupported assertion, usually by a person of standing; a dictum.

Nope, Constitution used word “man” ,which can be interpreted as particular to gender or as “human, no gender specified”. State constitutions often had clear language stating that the word “man” in the voting rights statute is intended to mean “male human”.

Not an attorneybut that is how I understand the trial evidence also. Judge Walker made a point of emphasizing the need for all evidence when this case got started last summer (fall?).
The Supremes do not listen to the witnesses again. They read the transcripts from the original trial.
I think. . .